The Death of Algorithms?

The Federal Trade Commission's new enforcement weapon could be the death of algorithms. Over the years the Federal Trade Commission (FTC) has struggled to find ways to combat deceptive digital data practices using its limited set of enforcement options. Now, it's landed on algorithmic destruction. In the past, the FTC has required companies to disgorge ill-gotten monetary gains obtained through deceptive practices. Forcing companies to delete algorithmic systems built on ill-gotten data is a step towards modernizing FTC enforcement.


A Demand for Algorithmic Destruction


In a March 4, 2022 settlement order the FTC demanded Weight Watchers (WW International) destroy the algorithms or AI models it built using personal information collected through its Kurbo healthy eating app from kids as young as 8 without parental permission.


However, this is not the first time the FTC has taken such action. In 2019 the FTC demanded Cambridge Analytica destroy the data it had gathered about Facebook users through deceptive means along with "information or work product, including any algorithms or equations" built using the ill-gotten data.


Two years later the FTC told Everalbum (a photo-sharing app) to destroy the photos, videos and facial and biometric data it gathered from app users and to delete products built using it, including"any models or algorithms developed in whole or in part" using the data.


Shifting Sentiments at the FTC


While the FTC's recent Weight Watchers demand isn't a new approach, sentiments at the FTC seem to be shifting. Previously, "Commissioners voted to allow data protection law violators to retain algorithms and technologies that derive much of their value from ill-gotten data" said former FTC Commissioner Rohit Chopra.


Enter Rebecca Slaughter, current FTC Commissioner. Slaughter has been a vocal supporter of algorithmic destruction as a way to penalize companies for unfair and deceptive data practices. "The premise is simple: when companies collect data illegally, they should not be able to profit from either the data or any algorithm developed using it," said Slaughter along side FTC lawyers Janice Kopec and Mohamad Batal in the Yale Journal of Law and Technology. Further, they stated "[t]he authority to seek this type of remedy comes from the Commission's power to order relief reasonably tailored to the violation of the law."


Is This the Death of Algorithms?

FTC's recent Weight Watchers demand could be a sign that algorithmic disgorgement will be used again. However, it's hard to predict. The Weight Watchers case included a violation of the Children's Online Privacy Protection Act (COPPA) adding a unique wrinkle. What we can say is the FTC has set a precedent for algorithmic disgorgement when unfair a deceptive practices are combined with COPPA violations.


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